[Federal Register Volume 69, Number 19 (Thursday, January 29, 2004)]
[Proposed Rules]
[Pages 4274-4281]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1625]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AI74


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Arabis perstellata (Braun's Rock-cress)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule; revisions to proposed critical habitat, 
reopening of comment period, and notice of availability of revised 
draft economic analysis.

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SUMMARY: We, the Fish and Wildlife Service, give notice of a proposed 
extension of Units 18 (Scales Mountain), 19 (Sophie Hill), and 20 
(Indian Mountain) and the addition of two new units in Rutherford and 
Wilson Counties, Tennessee (Unit 21-Grandfather Knob and Unit 22-
Versailles Knob) to the proposed critical habitat for Arabis 
perstellata (Braun's rock-cress). We are reopening the comment period 
on the proposal to designate critical habitat for this plant species to 
allow all interested parties to comment on the proposed rule, including 
the new information regarding Units 18, 19, and 20, the two new 
proposed units in Tennessee (Units 21 and 22). We also announce the 
availability of a revised draft economic analysis of the proposed 
designation.

DATES: The comment period is hereby reopened until March 1, 2004. 
Comments should be received from all interested parties by the closing 
date. Any comments that we receive after the closing date may not be 
considered in the final decision on this proposal.

ADDRESSES: Written comments and materials may be submitted to us by any 
one of the following methods:
    1. You may submit written comments and information to the Field 
Supervisor, U.S. Fish and Wildlife Service, 446 Neal Street, 
Cookeville, TN 38501.
    2. You may hand-deliver written comments and information to our 
Tennessee Field Office, at the above address, or fax your comments to 
(931) 528-7075.
    3. You may send comments by electronic mail (e-mail) to: 
[email protected]. For directions on how to submit electronic filing of 
comments, see the ``Public Comments Solicited'' section.
    Comments and materials received, as well as supporting 
documentation used in preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the above address.

FOR FURTHER INFORMATION CONTACT: Timothy Merritt, at the above address, 
telephone (931) 528-6481, extension 211; facsimile (931) 528-7075.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We solicit comments on: (a) the original proposed critical habitat 
designation (June 3, 2003, 68 FR 33058); (b) the new information 
regarding the expanded, proposed critical habitat for three units in 
Tennessee and the addition of two new proposed critical habitat units 
in Tennessee which we present in this proposed rule document; and (c) 
the revised draft economic analysis. We are particularly interested in 
comments concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of designation will outweigh any threats to the 
species resulting from designation;
    (2) Specific information on the amount and distribution of Arabis 
perstellata and its habitat, and which habitat is essential to the 
conservation of this species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families; and
    (5) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    All previous comments and information submitted during the initial 
comment period need not be resubmitted. Refer to the ADDRESSES section 
for information on how to submit written comments and information. Our 
final determination on the proposed critical habitat will take into 
consideration all comments and any additional information received.
    Please submit electronic comments in an ASCII file format and avoid 
the use of special characters and encryption. Please also include 
``Attn: RIN 1018-AI74'' and your name and return address in your e-mail 
message. If you do not receive a confirmation from the system that we 
have received your e-mail message, please contact us directly at our 
Tennessee Field Office (see ADDRESSES section and FOR FURTHER 
INFORMATION CONTACT).
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address from the rulemaking record, which we will honor to 
the extent allowable by law. In some circumstances, we would withhold 
from the rulemaking record a respondent's identity, as allowable by 
law. If you wish for us to withhold your name and/or address, you must 
state this prominently at the beginning of your comments. However, we 
will not consider anonymous comments. We will make all submissions from 
organizations or businesses, and from individuals identifying 
themselves as representatives or officials of organizations or 
businesses, available for public inspection in their entirety.
    The revised draft economic analysis is available on the Internet at 
http://cookeville.fws.gov. You may request copies by writing to the 
Field Supervisor, U.S. Fish and Wildlife Service, 446 Neal Street, 
Cookeville, TN 38501, or by calling Timothy Merritt, Tennessee Field 
Office, at telephone 931/528-6481, extension 211.

Background

    Arabis perstellata (Braun's rock-cress) was listed as an endangered 
species

[[Page 4275]]

under the Endangered Species Act of 1973, as amended (Act) on January 
3, 1995 (60 FR 56). On June 3, 2003, we published a proposed critical 
habitat designation for Arabis perstellata in the Federal Register (68 
FR 33058). The proposed designation included 20 critical habitat units 
in Kentucky and Tennessee--14 units in Franklin County, Kentucky; 3 in 
Owen County, Kentucky; and 3 in Rutherford County, Tennessee. Our 
descriptions of the proposed Critical Habitat Units 1 through 17 in the 
June 3, 2003, proposal, and our intentions to propose these areas, as 
described in the June 3, 2003, document, remain unchanged.
    In the proposed rule, we mentioned that we had received new 
information from the Tennessee Department of the Environment and 
Conservation (TDEC) (D. Lincicome, pers. comm. 2003) regarding the 
extension of the range of one of the known populations of Arabis 
perstellata and existence of one new population. Additional occurrences 
of the known population were found on Townsel Hill, west of the City of 
Murfreesboro between Newman and Coleman Hill Roads in Rutherford 
County, Tennessee. This site is adjacent to the proposed Sophie Hill 
critical habitat site (Unit 19) and belongs to the same private 
landowner. The other population is located on Grandfather Knob (Unit 
21) between Cainsville and Spain Hill Roads in Wilson County, 
Tennessee. These occurrences of Arabis perstellata were located 
following the drafting of the proposed critical habitat rule. Because 
of time constraints due to a court-ordered deadline as well as 
budgetary constraints, we were unable to formally and adequately 
analyze the sites containing additional occurrences and a new 
population to determine if they were essential to the conservation of 
the species and warranted inclusion into critical habitat. We have 
since conducted an analysis of Arabis perstellata and its habitat on 
these two sites and have determined these areas to be essential to the 
conservation of Arabis perstellata (see discussion below). Therefore, 
we now propose them for inclusion in this proposed rulemaking.
    During the open comment period (June 3, 2003, to August 4, 2003), 
we received additional information from TDEC regarding extended ranges 
of two other known populations (Units 18 and 20) and the discovery of a 
new population at Versailles Knob in Rutherford County, Tennessee. We 
have also analyzed this new information and determined that the 
extension of the populations at Units 18 and 20 and the new population 
at Versailles Knob (Unit 22) are essential to the conservation of 
Arabis perstellata (see discussion below). Consequently, we are 
reopening the comment period to allow for public comment on our 
proposal to revise the published proposed critical habitat designation 
for Units 18, 19, and 20 and to propose Units 21 and 22, as set forth 
in our Proposed Regulation Promulgation.
    The revised proposed designation for Arabis perstellata now 
encompasses a total of approximately 648 hectares (ha) (1,600 acres 
(ac)) of upland habitat, approximately 328 ha (810 ac) in Kentucky and 
approximately 320 ha (790 ac) in Tennessee. This is an increase in the 
amount of land proposed as critical habitat for Arabis perstellata in 
Tennessee from the 80 ha (198 ac) originally proposed. The proposed 
designation and associated materials can be viewed at http://cookeville.fws.gov.

Evaluation of Documented New Populations of Arabis perstellata

    When we originally proposed critical habitat for Arabis perstellata 
for 20 units in Kentucky and Tennessee, we used several factors in the 
selection of these units (June 3, 2003, 68 FR 33058). We assessed the 
objectives and criteria as discussed in the July 1997 final recovery 
plan for Arabis perstellata, which emphasize the protection of 
populations throughout a significant portion of the species' range in 
Kentucky and Tennessee. Based on the objectives and criteria in the 
recovery plan, Arabis perstellata will be considered for delisting when 
20 geographically distinct, self-sustaining populations, consisting of 
50 or more plants each, are protected in Kentucky and Tennessee, and it 
has been demonstrated that the populations are stable or increasing 
after 5 years of monitoring following reclassification to threatened 
status. Because of the proximity of occurrences of Arabis perstellata, 
protected populations must be distributed throughout the range in order 
to decrease the probability of a catastrophic event impacting all the 
protected populations. Consequently, in our proposal of June 3, 2003, 
we proposed 17 of the 37 sites containing known populations of Arabis 
perstellata in Kentucky as critical habitat. In Tennessee, we proposed 
three of the four known sites containing Arabis perstellata as critical 
habitat.
    A survey for new populations of Arabis perstellata unrelated to 
this proposed critical habitat rule was conducted in the spring and 
early summer of 2003 by Tennessee Division of Natural Heritage 
personnel. During this survey effort, the distribution of Arabis 
perstellata was found to be more widespread at the three extant 
populations (Units 18, 19, and 20) and two new populations were 
documented (Grandfather Mountain and Versailles Knob). The expansion of 
the population of Arabis perstellata within Unit 19 and the newly 
documented population of the species on Grandfather Mountain were 
discussed in our June 2003 proposed critical habitat rule. However, the 
discovery of additional occurrences of Arabis perstellata that resulted 
in the proposed expansions of Units 18 and 20 and the newly documented 
population on Versailles Knob did not occur until the end of the 
comment period for the June 2003 proposed rule. The discovery of these 
occurrences and additional new populations of Arabis perstellata is 
significant because it has nearly doubled the size of the known 
distribution of the species in Tennessee. Based on this new information 
gathered during the 2003 survey efforts by TDEC, we are revising and 
enlarging the extent of critical habitat proposed on June 3, 2003 (68 
FR 33058) for Units 18, 19, and 20, to include the new occurrences of 
Arabis perstellata and its essential habitat.
    Further, in our June 2003, proposed rule, we indicated that we were 
aware of 4 occurrences of Arabis perstellata in Tennessee, of which, we 
proposed 3 as critical habitat. As a result of the new information from 
the TDEC surveys, we have learned that the site in Davidson County, 
Tennessee, which was not proposed as critical habitat, actually 
contains a different plant species. The species at this site has been 
identified as Arabis shortii (Short's rockcress).
    We are also revising 68 FR 33058 to add a proposal to designate as 
critical habitat the sites where the newly documented populations of 
Arabis perstellata were found on Grandfather Mountain (Unit 21) in 
Wilson County, Tennessee, and also that on Versailles Knob (Unit 22) in 
Rutherford County, Tennessee. Both areas contain one or more of the 
primary constituent elements for Arabis perstellata. In addition, the 
two newly discovered populations increase the present distribution of 
the plant throughout its southern range. Previously, only three 
populations of Arabis perstellata were known to occur in Tennessee. The 
discovery of these two new populations, with well over 100 plants each, 
increases the number of populations in Tennessee from 3 to 5. Because 
of the limited known distribution of Arabis perstellata, and because 
the populations in Tennessee are geographically disjunct from the 37 
Arabis perstellata

[[Page 4276]]

populations in Kentucky, all 5 populations in Tennessee have been 
determined to be essential to ensure the plant's long-term conservation 
in order to meet the recovery plan criteria of having protected 
populations distributed throughout the species' range of Kentucky and 
Tennessee.

Proposed Revisions to Units 18, 19, and 20 and Proposed Units 21 and 22

Unit 18. Scales Mountain in Rutherford County, Tennessee

    This unit is located on private property west of the City of 
Murfreesboro on Scales Mountain, 1.6 km (1 mile) south of Highway 96. 
Based on the new information, Arabis perstellata has now been 
documented on all three knobs of Scales Mountain. The plant and habitat 
are most abundant on the central and eastern knobs of Scales Mountain. 
However, our original proposed designation of critical habitat for this 
unit, approximately 36 ha (89 ac) in size, only included the eastern 
knob. The central and eastern knobs are estimated to contain more than 
200 plants, while the western knob contains approximately 100 plants 
(TDEC 2003). We believe that the Arabis perstellata plants found on 
these three knobs comprise a single population. Based on the recovery 
criteria for the species as outlined in the final recovery plan, the 
estimated size of this population, and its location within the southern 
portion of the species' range, we have determined that the additional 
documented habitat containing Arabis perstellata is essential to the 
conservation of this plant. We, therefore, are revising Critical 
Habitat Unit 18 proposed in 68 FR 33058 to include all three knobs of 
Scales Mountain. The revised critical habitat unit is approximately 103 
ha (255 ac) in size and is fully under private ownership.

Unit 19. Sophie Hill in Rutherford County, Tennessee

    In our June 2003, proposed critical habitat (68 FR 33058), we 
identified Unit 19 as being approximately 16 ha (40 ac) in size and 
located west of the City of Murfreesboro on Sophie Hill, which lies 
between Newman and Coleman Hill Roads. During the 2003 surveys by TDEC, 
in excess of 300 Arabis perstellata plants were documented on the 
adjacent Townsel Hill. This population is larger than that found on 
Sophie Hill, which is estimated to contain approximately 200 plants. 
Due to the physical proximity of the two locations, Sophie Hill and 
Townsel Hill, we believe that the occurrences of Arabis perstellata 
documented at these sites are one population, containing over 500 
standing plants. Based on the recovery criteria for the species as 
outlined in the final recovery plan, the estimated size of this 
population, and its location within the southern portion of the 
species' range, we have determined that the additional documented 
habitat containing Arabis perstellata is essential to the conservation 
of this plant. Accordingly, we are expanding the Critical Habitat Unit 
19 proposed in 68 FR 33058 to include the Townsel Hill occurrences. The 
new size of this unit would be 53 ha (132 ac). Both hills are privately 
owned.

Unit 20. Indian Mountain in Rutherford County, Tennessee

    Unit 20 is located west of the City of Murfreesboro on Indian 
Mountain, between Highway 96 and Coleman Hill Road. During the 
development of our June 2003 proposed critical habitat (68 FR 33058), 
we believed that that Arabis perstellata occurred only on the eastern 
and central knobs of Indian Mountain. However, based on the survey 
efforts by TDEC (2003), Arabis perstellata has now been documented to 
be abundant on all three knobs of Indian Mountain, including two new 
occurrences that together contain more than 300 plants in good to 
excellent habitat. Because of the proximity of the occurrences, it is 
assumed that these occurrences constitute one population. Based on the 
recovery criteria for the species as outlined in the final recovery 
plan, the estimated size of this population, and its location within 
the southern portion of the species' range, we have determined that the 
additional documented habitat containing Arabis perstellata is 
essential to the conservation of this plant. Consequently, we are 
revising the critical habitat proposed in 68 FR 33058 for Unit 20 to 
include all three knobs of Indian Mountain. The resulting Unit 20 is 
estimated to be 87 ha (214 ac) of privately owned land.

Unit 21. Grandfather Knob in Wilson County, Tennessee

    During the 2003 surveys by TDEC, two new occurrences of Arabis 
perstellata were located on Grandfather Knob in Wilson County, 
Tennessee. This finding represents the first documented occurrence of 
Arabis perstellata in Wilson County. The plant and its habitat are 
abundant at both sites. More than 150 plants occur at the two sites, 
and due to their physical proximity, we believe that they comprise a 
single population. This population is 20 miles (32 kilometers) from the 
nearest extant Arabis perstellata population in Tennessee, making this 
an important find from the aspect of reducing the probability of a 
catastrophic event impacting so many populations (Units 18, 19, and 20 
all occur within close proximity of each other). The site contains one 
or more of the primary constituent elements essential for the 
conservation of Arabis perstellata. Therefore, we are revising 68 FR 
33058 to add a proposal to designate 43 ha (106 ac) on Grandfather Knob 
as new Critical Habitat Unit 21. The site is privately owned.

Unit 22. Versailles Knob in Rutherford County, Tennessee

    During the 2003 surveys by TDEC, one new occurrence was found on 
Versailles Knob in Rutherford County, Tennessee. More than 200 plants 
were documented to occur on this knob. This population is 11 miles (18 
kilometers) from the nearest extant Arabis perstellata population in 
Tennessee, which also makes this an important find from the aspect of 
reducing the probability of a catastrophic event impacting so many 
populations (Units 18, 19, and 20 all occur within close proximity of 
each other). Because the site contains one or more of primary 
constituent elements essential for the conservation of Arabis 
perstellata, we are revising 68 FR 33058 to add a proposal to designate 
approximately 34 ha (83 ac) Versailles Knob as new Critical Habitat 
Unit 22. The site is privately owned.

Exclusions Under Section 4(b)(2)

    Section 4(b)(2) of the Act requires that we designate critical 
habitat on the basis of the best scientific data available and after 
taking into consideration the economic impact, and any other relevant 
impact, of specifying any particular area as critical habitat. We may 
exclude an area from critical habitat if we determine that the benefits 
of excluding the area outweigh the benefits of including the area as 
critical habitat, provided that such exclusion will not result in the 
extinction of the species. In the June 3, 2003, proposed designation of 
critical habitat for Arabis perstellata (68 FR 33058), we announced the 
availability of the draft economic analysis of the proposed 
designation. However, as a result of the subject revisions to the 
proposed critical habitat discussed herein, we have reevaluated the 
potential economic impact of the proposed designation, taking into 
consideration the revisions to Units 18, 19, and 20 and the inclusion 
of Units 21 and 22. Accordingly, we have prepared a revised draft 
economic analysis of the

[[Page 4277]]

proposed critical habitat designation, and are making it available for 
review and comment (see ADDRESSES section).

Author

    The primary author of this document is Timothy Merritt (see 
ADDRESSES section).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    For the reasons stated in the preamble, we propose to amend the 
proposed amendments to part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as published in the Federal Register 
of June 3, 2003, starting on page 33058, as follows:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec. 17.96, as proposed to be amended by 68 FR 33058, amend 
paragraph (a) by removing paragraphs (21) through (24) in the entry for 
``Family Brassicaceae'' Arabis perstellata and adding new paragraphs 
(21) through (26), to read as follows:


Sec. 17.96  Critical habitat--plants.

    (a) * * *
    Family Brassicaceae: Arabis perstellata (Braun's rock-cress).
* * * * *
    (21) Index map for Tennessee.
    (i) Data layers defining map units were created on a base of USGS 
7.5' quadrangles, and proposed critical habitat units were then mapped 
using Tennessee State Plane, NAD 83, coordinates.
    (ii) Map 8, Index of Critical Habitat Proposed for Braun's Rock-
cress, Tennessee, follows:
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[GRAPHIC] [TIFF OMITTED] TP29JA04.003

    (22) Unit 18: Scales Mountain, Rutherford County, Tennessee.
    From USGS 1:24,000 quadrangle Rockvale, Tennessee; land bounded by 
the following Tennessee State Plane / NAD83 (feet) coordinates (E,N): 
1796404.35, 548844.10; 1797871.97, 548892.57; 180101.59, 549457.83; 
1800070.19, 547856.27; 1797934.77, 547071.19; 1794371.09, 545752.45; 
1794062.13, 546793.75.
    (23) Unit 19: Sophie Hill, Rutherford County, Tennessee.
    From USGS 1:24,000 quadrangle Rockvale, Tennessee; land bounded by 
the following Tennessee State Plane / NAD83 (feet) coordinates (E,N): 
1804332.94, 539670.12; 1805958.29, 539809.20; 1806144.40, 538804.21; 
1805404.04, 538616.52; 1805093.00, 538606.55; 1804993.27, 537830.88; 
1804984.80, 537416.39; 1803035.85, 537424.55; 1803073.16, 537763.87; 
1802727.95, 539581.93; 1802926.61, 539663.11; 1803161.20, 539608.97; 
1803341.75, 539609.00; 1803432.02, 539563.84; 1803585.87, 539636.20; 
1803702.77, 539762.44; 1803829.05, 539789.45; 1804392.03, 539266.92.
    (24) Unit 20: Indian Mountain, Rutherford County, Tennessee.
    (i) From USGS 1:24,000 quadrangle Rockvale, Tennessee; land bounded 
by the following Tennessee State Plane / NAD83 (feet) coordinates 
(E,N): 1797048.41, 546270.92; 1800392.46, 546150.00; 1802111.40, 
546443.12; 182532.04, 544775.34; 1802592.03,

[[Page 4279]]

544138.56; 1799853.77, 544635.03; 1796909.24, 544584.61.
    (ii) Map 9, Units 18, 19, and 20. Critical Habitat for the Braun's 
Rock-cress, Tennessee, follows:
[GRAPHIC] [TIFF OMITTED] TP29JA04.004

    (25) Unit 21: Grandfather Mountain, Wilson County, Tennessee.
    (i) From USGS 1:24,000 quadrangle Lascassas, Tennessee; land 
bounded by the following Tennessee State Plane / NAD83 (feet) 
coordinates (E,N): 1888463.64, 602182.29; 1890759.35, 602182.29; 
1890842.07, 601189.55; 1889518.42, 599969.31; 1888877.28, 599638.40; 
188670.46, 599638.40; 1888401.59, 600300.23.
    (ii) Map 10, Unit 21. Critical Habitat for the Braun's Rock-cress, 
Tennessee, follows:

[[Page 4280]]

[GRAPHIC] [TIFF OMITTED] TP29JA04.005

    (26) Unit 22: Versailles Knob, Rutherford County, Tennessee.
    (i) From USGS 1:24,000 quadrangle Rover, Tennessee; land bounded by 
the following Tennessee State Plane / NAD83 (feet) coordinates (E,N): 
1806361.65, 504515.38; 1808616.22, 505711.83; 1809308.27, 504327.51; 
1808517.23, 503872.66; 1807034.03, 503477.14.
    (ii) Map 11, Unit 22. Critical Habitat for the Braun's Rock-cress, 
Tennessee, follows:

[[Page 4281]]

[GRAPHIC] [TIFF OMITTED] TP29JA04.006


    Dated: January 16, 2004.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-1625 Filed 1-28-04; 8:45 am]
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